16 Sep Informed Consent When Treated By Dentists

The Plaintiff in the case of De Sousa v. Rogers, 2019 BCSC 128, sued two dentists. She submitted that the first dentist failed to obtain her informed consent for the extraction of a tooth and the second dentist failed to obtain her informed consent for the placement of implants.

The principles governing the standard of care for informed consent obtained by a dentist are the same as those for a medical doctor. Informed consent can engage both the tort of negligence and the tort of battery. In this case, the Plaintiff only alleged negligence, where the issue is essentially a duty of disclosure. A dentist who carries out a procedure in compliance with the standard of care can still be found negligent if he or she did not properly disclose the risks of the treatment before obtaining consent.

Before obtaining a patient’s consent and implementing a course of treatment, the dentist must disclose to the patient the nature of the proposed treatment, its gravity, and any associated material, special and unusual risks that a reasonable person would want to know. The dentist must also explain the nature and severity of the injury that could ensue.  If the evidence proves that a person was not properly informed of the risks of the procedure, she or he must then prove that a reasonable person in that position would not have undergone the procedure if advised of the risks.

According to the dentist who extracted her tooth, he told the Plaintiff that the best treatment was to do nothing with her tooth. He suggested returning to an endodontist but the Plaintiff insisted on immediate extraction. He explained the tooth was not loose and had long roots. He explained that the surgical procedures would include making a cut in the gum, moving the gum to one side, drilling the bone to loosen the tooth and then removing the tooth. He told the Plaintiff that post-operative risks included pain, swelling, bruising, bleeding, and infection.

In stark contrast to this dentist’s testimony, the Plaintiff denied that he explained the risks, benefits, and alternatives to treatment when he conducted the surgery. She further denied that he recommended doing nothing. She denied that he told her he planned to cut the gum, move it out of the way, and drill the bone to remove the tooth. She denied that she was told there would be stitches. The judge preferred the dentist’s recollection to that of the Plaintiff.  He also accepted that evidence of the standard practice of a professional is cogent evidence of what occurred.

The second dentist testified that he had an extensive discussion with the Plaintiff about the risks and benefits of dental implants and the alternatives to them. He discussed several treatment options including implants, with a view to giving her as much information as possible. At a second appointment, he discussed implants further with her. At a third appointment, he had his standard “informed consent discussion”. This included the risks and benefits of implants, and the percentage rates of success.

The Plaintiff denied such discussions but the judge was satisfied that those discussions took place. The second dentist’s testimony was entirely unshaken in cross-examination and the judge found that the Plaintiff was not a reliable historian.

The evidence did not establish that either dentist breached their duty to inform the Plaintiff of the nature of the procedure and its associated risks prior to obtaining her consent.  As such, the Plaintiff’s case against the Defendants was dismissed.